The defendant appeals under G.L.c. 278, §§ 33A-33G, from convictions on two indictments each charging an unarmed robbery. G.L.c. 265, § 19. He assigns as error the refusal of the judge to direct verdicts on so much of the indictments as charged unarmed robbery, on the basis that the evidence in each case disclosed at most larceny and not robbery.
The pertinent evidence was as follows: On the evening of December 14, 1970, at approximately 6:30 P.M., Mrs. Florence Spring and her daughter, Miss Madeline Spring, left their apartment in Dorchester to go shopping by automobile. Each lady was carrying a pocketbook. Florence Spring opened both front and rear doors on the passenger's side in search of a snow scraper with which to remove snow from the car. She was unable to find it. Madeline Spring then knelt down on the front seat with feet extended outside the car and, leaning across the seat, she felt with her hand on the floor for the scraper. Meanwhile, Florence Spring opened the trunk of the car, took out a stick, and started to clean the rear window from the driver's side.
Madeline Spring testified that, while feeling along the floor of the front seat, she realized she "couldn't move ... [her] foot," that "[f]or a minute" she was "stunned," but that then she turned back and saw "a black face with eyes" in the window and she "knew somebody was holding the door on ... [her] foot." Miss Spring stated that she became "petrified" and screamed; that she looked up and put her hand on the horn; and that while in this position, she observed a "shadow ... [go] by the driver's side towards the back of the car." The door was then released and she got out of the car. In answer to the
Florence Spring testified that, upon hearing her daughter's scream, she "started ... to the front of the car"; that she saw a young man on the passenger's side by the headlight; that this young man started across the street but turned and approached her; and that he "grabbed ... [her] pocketbook." She indicated that the pocketbook was on her arm at the time. She described the taking as follows: "I really couldn't tell you what he did. All I knew he was standing there. Next thing I knew, I felt something off my arm. I realized my bag was gone." In answer to the question, "[H]ow did you feel?" Mrs. Spring said: "Petrified .... I was scared to death." She also testified that, after the pocketbook was taken, "I said it belonged to me, and I wanted it, and he started towards the sidewalk ... and I started after him with the stick in my hand."
About two hours after the incidents described by the victims, the police arrested the defendant and three other males in his company. They found credit cards and other articles from the women's pocketbooks in the possession of the defendant and one of the other men.
1. We begin with a general discussion of the elements which distinguish robbery from larceny.
The present unarmed robbery statute follows substantially the language of predecessor statutes, the first enacted
The common law came to regard robbery as a more serious offence than larceny because of the added element of personal violence or intimidation. 4 Blackstone, Commentaries (Cooley, 4th ed.) 242-243. 3 Co. Inst. 68. The exertion of force, actual or constructive, remains the principal distinguishing characteristic of the offence.
The element of "from the person" is the other distinctive aspect of robbery. Although some statutory definitions of the offence, including our own (G.L.c. 277, § 39), speak of a taking "from ... [the] person" without adding "or in his presence," a larceny in the presence of the victim is sufficient to constitute robbery. Commonwealth v. Mahoney, 331 Mass. 510, 513. People v. Braverman, 340 Ill. 525, 530-531. State v. Deso, 110 Vt. 1, 6, and cases cited. "[The phrase `or in his presence'] adds nothing other than emphasis because, as pointed out by Coke, where deprivation is accomplished by violence or intimidation, `that which is taken in his presence is in law taken from his person.'" Perkins, Criminal Law (2d ed.) 282, quoting 3 Co. Inst. 69. An object is deemed to be within the presence of the victim if it is within his area of control. Commonwealth v. Homer, 235 Mass. 526, 533. Anderson, Wharton's Criminal Law & Procedure, § 553. 77 C.J.S., Robbery, § 9, at 455.
2. The question whether the snatching or sudden taking of property constitutes robbery has arisen in other jurisdictions although not in Massachusetts. Cf. Commonwealth
We prefer the Kentucky rule on purse snatching. The majority jurisdiction rule, in looking to whether or not the victim resists, we think, wrongly emphasizes the victim's opportunity to defend himself over the willingness of the purse snatcher to use violence if necessary. See Note, 23 J. Cr. Law, 111, 115. Historically, however, the law has
3. We consider first the indictment arising from the taking of Florence Spring's pocketbook.
The defendant argues that the evidence does not disclose the use of force, actual or constructive, to take the victim's property. It is conceded that the Commonwealth was not required to show both actual and constructive force. See Commonwealth v. Humphries, 7 Mass. 242, 244.
Snatching necessarily involves the exercise of some actual force. For the reasons stated, supra, we hold that, where, as here, the actual force used is sufficient to produce awareness, although the action may be so swift as to leave the victim momentarily in a dazed condition, the requisite degree of force is present to make the crime robbery. In any event, Mrs. Spring testified that she was "[p]etrified." And also: "I was scared to death." Whether her fear aided the defendant in effecting the taking, or merely arose afterwards as the defendant argues, was a question properly for the determination of
Commonwealth v. Novicki, 324 Mass. 461, relied upon by the defendant, is readily distinguishable on the facts. In the Novicki case, the alleged robber had left the victim's presence undetected and was in the process of leaving through a door before he was noticed. At 463-464. In these circumstances, there was no basis for a jury finding that the victim's fear played a part in the larceny. By contrast, in the instant case, Mrs. Spring watched the defendant approach her, and she became aware of the taking as it occurred. The jury could permissibly infer from the totality of the circumstances that the victim's fright arose simultaneously with, and aided the defendant in, the taking.
4. Concerning the other indictment, the defendant contends that the evidence is inconclusive as to both where and when Madeline Spring's pocketbook was taken.
Although no testimony was offered as to the precise location of Miss Spring's pocketbook at the moment of the taking, we think the evidence presented was ample to permit an inference that the pocketbook was inside the car with the victim when taken. It was not necessary that the Commonwealth show that she was physically in possession. See Commonwealth v. Homer, 235 Mass. 526, 533; Commonwealth v. Mahoney, 331 Mass. 510, 513. The closing of the car door on Miss Spring's foot was sufficient evidence, coupled with the disappearance of her purse at approximately the same time, to allow the jury to infer the requisite causal relationship between the force and the taking.
5. There was no error in either case in refusing to direct a verdict of not guilty on the charge of unarmed robbery.